subject: North Carolina Absolute Divorce Lack Service Process Lawyers Attorneys [print this page] BERNICE LEO FREEMAN, Plaintiff, vBERNICE LEO FREEMAN, Plaintiff, v. DOROTHY JANIE (sic) FREEMAN, Defendant.
COURT OF APPEALS OF NORTH CAROLINA
October 29, 2002, Heard in the Court of Appeals
December 31, 2002, Filed
Bernice Freeman and defendant Dorothy Freeman were married 4 July 1980. On 10 July 1985, Bernice Freeman instituted this action for divorce, and on 28 August 1985, a judgment of absolute divorce was entered.
Bernice Freeman died on 20 April 1998. On 4 April 2000, defendant filed a motion in the cause in this action to set aside the judgment of absolute divorce, and served the motion onthe administrator of Bernice Freeman's estate, who was subsequently substituted as party plaintiff. By order dated 13 November 2001, the trial court concluded the judgment of absolute divorce was void and granted defendant's motion to set it aside. Plaintiff administrator appealed.
Issue:
Whether the trial court erred in determining that the 1985 divorce judgment is void for lack of service of process?
In the instant case, defendant produced not only her own testimony, but also evidence of several circumstances inconsistent with her having signed the return of service. Although plaintiff presented a handwriting analysis expert who stated that the signature on the acceptance of service was defendant's. Defendant also presented testimony by another handwriting expert, who stated that he could not with any degree of scientific certainty say that the questioned signature was defendant's. Defendant testified that Bernice Freeman had signed her name to documents on other occasions. In addition, defendant also submitted evidence of other circumstances supporting her claim that she had not been served with the divorce complaint nor known about the divorce. She and others testified that she and decedent continued to live as a married couple after the divorce was entered. They purchased property together, lived together, raised a son together, and decedent applied for social security disability benefits listing defendant as his wife. Though plaintiff produced evidence from which contrary findings could have been made, defendant offered explanations to meet such evidence. The weight, credibility, and convincing force of such evidence is for the trial court, who is in the best position to observe the witnesses and make such determinations. The trial court specifically found defendant's evidence to be "clear, unequivocal and convincing" that defendant had not been served with process. Once a party to a divorce dies, the divorce judgment cannot be later attacked unless it is void. A divorce granted without proper service of process upon the defendant is void when she does not appear in the action or does not otherwise waive service of process. In this case, the judgment of divorce was void due to lack of service on defendant. Accordingly, the judgment could be attacked and set aside following Bernice Freeman's death.
Hence this court affirmed the trial court's judgment.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content
North Carolina Absolute Divorce Lack Service Process Lawyers Attorneys
